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Is a dental practice liable if a patient is sexually assaulted by a contractor while under anesthesia? The Georgia Supreme Court recently decided, in the case of Goldstein Garber & Salama v. J.B., that it is not.

In a unanimous decision, the Supreme Court on Feb. 27 found that the Fulton County Circuit Court should have granted Goldstein Garber & Salama a directed verdict. The Georgia Court of Appeals had upheld the lower court’s ruling and it, too, erred, wrote Chief Justice P. Harris Hines.

The Supreme Court decided that the dental practice could not have reasonably foreseen that the anesthetist would sexually assault a patient.

According to the court's opinion, on Sept. 16, 2009, an 18-year-old woman [identified only by initials] underwent two dental procedures at the offices of Goldstein Garber & Salama. A Certified Registered Nurse Anesthetist, Paul Serdula, administered the anesthesia.

Serdula had been hired by GGS as an independent contractor through anesthesia staffing agency Certified Anesthesia Providers, which had conducted an independent credentialing process on Serdula prior to placing him in any medical or dental facilities.

In the two hours between the procedures, Serdula allegedly sexually assaulted J.B. and recorded it on his cellphone. A subsequent investigation found that Serdula had assaulted other patients, including a 15-year-old girl, and had recorded video of employees in the restroom.

Serdula was sentenced to life in prison after pleading guilty to a plethora of charges including aggravated sodomy and aggravated child molestation.

J.B. filed a lawsuit against Goldstein Garber & Salama. She had initially named Serdula in the suit but then dismissed him when he went to prison. She claimed in her suit that the dental practice should have better supervised Serdula, should have had a procedure in place for monitoring patients under anesthesia (violating the standard of care in that regard), was negligent, and the cause of her emotional damages, the opinion states.

Goldstein Garber & Salama asked the Fulton County court to direct a verdict in its favor. The jury had awarded J.B. $3.7 million and said that Goldstein Garber & Salama was liable for 100 percent of it. The court of appeals upheld the lower court’s ruling after Goldstein Garber & Salama appealed. It appealed the case to the Georgia Supreme Court.

The Supreme Court disagreed that the dental practice breached its duties to follow professional standards in regards to J.B.’s assault while under anesthesia. The opinion states “in order to recover for any injuries resulting from the breach of a duty, there must be evidence that the injuries were proximately caused by the breach of the duty.”

The court further states that because Serdula committed the acts, “...when a defendant claims that its negligence is not the proximate cause of the plaintiff’s injuries, but that an act of a third party intervened to cause those injuries, the rule is that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant.” However, “this rule does not insulate the defendant ‘if the defendant had reasonable grounds for apprehending that such wrongful act would be committed.”

The Supreme Court opined that Goldstein Garber & Salama could not reasonably have foreseen Serdula’s actions and therefore should not be held liable.